JAYAMMAversusMARIA BAI DEAD BY PROPOSED LRS. AND ANR.

                      JAYAMMA                                             A
                          v.
       MARIA BAI DEAD BY PROPOSED LRS. AND ANR.

                            JULY 28, 2004

               [S.B. SINHA AND S.H. KAPADIA, JJ.]                         B

     Karnataka Land Reforms Act, 1961; Sections 2(12),(17), 21and61:

       Execution. of Will by testator in favour of his relative-Application
for grant of letters of administration filed by holder of the Will-Factum C
of execution of Will denied by the wife and children of the testator-Trial
Court holding that the testator executed the Will with full knowledge, in
sound state of mind-Appeal allowed by High Court holding that the Will
was not maintainable as the subject matter oftestament is agricultural land
and occupancy rights thereof could not be assigned-On appeal, Held: A D
 Court empowered to grant a letter of administration generally may not go
 into the question of title of property sought to be bequeathed-However,
 when a statutory embargo exists on the execution of a Will, Court could
 determine the question-Jn view of the provisions of the Act, Legislature
 intends that the land should not be allowed to go into the hands of a
 stranger-Any assignment made in contravention ofthe Act would invalidate E
 such assignment-Assignment made within prohibited period-Having
 regard to the provisions of the Act, transfer of agricultural land within
 occupancy right permissible only in favour of one of the heirs and not to
 other-Interpretation of Statutes-Indian Succession Act, 1925-Sections
 276 and 299.                                                               F
     Words and Phrases :

     'Family', 'joint family-Meaning of the context of Karnataka Land
Reforms Act.
                                                                          G
      Appellant, holder of a Will, filed an application for grant of letters
of administration enclosing therewith a copy of the Will purported to
 have been executed by testator, husband of one of the respondents. The
factum of the execution of the Will was denied by the respondent and
 children of the testator. Trial Court decreed the suit holding that the H
                                   175
    176                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A testator executed the Will with full knowledge, in sound state of mind
    and it was not obtained fraudulently by the appellant, the holder. High
    Court held that the application for grant of letters of administration
    was not maintainable in terms of Section 61 of the Karnataka Land
    Reforms Act since the subject matter of testament was agricultural
B   land and occupancy rights thereof could not have been assigned. Hence
    the present appeal.

       It was contended by the appellant that the trial Court had no
  jurisdiction to go into the question as to the title of the property while
  disposing of an application under Section 276 of the Indian Succession
C Act; and that the expression 'family' was used in Section 61 of
  Karnataka Land Reforms Act must be given extended meaning so as
  to include the persons related to the testator by legitimate kinship in
  it.

D      Respondents submitted that the appellant was not a family
    member of the testator.

          Dismissing the appeal, the Court

          HELD : 1.1. Sine qua non for obtaining the status of occupancy
E of tenancy is that the person concerned must be a tenant on the
    appointed day. (181-F)

        1.2. The Court empowered to grant a letter of administration
  although ordinarily may not go into the question of title in respect of
F property sought to be bequeathed by the testator the situation would be
  different where the authority of the testator to execute a Will in relation
  to the subject matter thereof is in question. When a statutory embargo
  exists on execution of a Will, the Court shall not refuse to determine the
  question as regard validity therecf, as in terms of the provisions of.a
G statute, the same would be void ab initio. (181-H; 182-A-B)
          1.3. Sub-section (3) of Section 61 of the Karnataka Land Reforms
    Act lays down that any transfer ofland in contravention of sub-section
    (1) shall be invalid whereupon the same shall vest in the State Government
    free from all encumbrances. The legislative intent that the land should
H   not be allowed to go to the hands.ofa stranger to the family is, therefore,
                                                      JJ   J-.;



               JAYAMMA v. MARIA BAI [SINHA, J.]                       177

manifest. Whereas in terms of Section 21 of the Act, strangers to the A
family of the tenant to come upon the land is not allowed, the tenor of
Section 61 is that except partition amongst the co-sharers, no transfer
of the property, in any manner, is permissible. (182-F-G]

   · 1;4. When an assignment or transfer is made in contravention of B
statutory provisioos,_the consequence whereof would be that same is
invalid, being opposed to public policy the same shall attract the
provisions of.Section 23 of the Indian Contract Act. (182-H; 183-AI

      2.2. lo the instant case, the transfer of agricultural land by way
of the Will has been made within a period of fifteen years from the date C
of grant, which is prohibited in law. Appellant, therefore, was not
having any legitimate kinship with the testator of the Will. On a fair
construction of Section 61 of the Act, a transfer of agricultural land
with occupancy right is permissible only in favour of one of the heirs
who would be entitled to claim partition of land and not others having D
regard to the definition of 'family' as contained in Section 2(12) and
'joint family' as contained in Section 2(17) of the said Act. (183-G-H]

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5637 of
2002.
                                                                            E
     From the Judgment and Order dated 25.5.1999 of the Karnataka High
Court in Mbc. First Appeal No. 2353 of 1990.

     S.N. Bhat for the Appellant.

     Hetu Arora and Shiv Kumar Suri for the Respondent.                     F
     The Judgment of the Court was delivered by

     S.B. SINHA, J.: Interpretation of Section 61 of the Kamataka Land
Reforms Act, 1961 (for short, "the said Act") falls for consideratinn in this G
appeal which arises out of a judgment and order dated 25.5.1999 passed
by a Division Bench of the High Court ofKamataka in Misc. First Appeal
No. 2353 of 1990.

     Before advertising to the issue involved in this appeal, the factual
matrix of the matter may be noticed.                                      H
    178                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       The appellant herein filed an application purported to be under
  Section 276 of the Indian Succession Act, 1925 for grant of lette;s of
  administration with a coy of the Will dated 20.2.1984 annexed purported
  to have been executed by one Anthony Rebello. The respondents herein
  are the wife and children of the testator. The factum of the execution of
B the Will having been denied and disputed by the notices, the said
  application was converted into a suit and marked as O.S. No. 66 of 1986.

         The Trial Court decreed the suit holding inter alia that the testator
    executed the Will with full knowledge, having sound state of mind and it
    was not obtained by practising fraud, misrepresentation or duress.
c       On an appeal preferred thereagainst the High Court while exercising
  its appellate jurisdiction under Section 299 of the Indian Succession Act.
  allowed the same holding that the application for grant of letters of
  administration with a copy of the Will was not maintainable in view of
D Section 61 of the said Act, inasmuch as the subject-matter of testament
  bebg agricultural land with occupancy right could not have been assigned.
  The High Court also rejected the contention raised on behalf of the
  appellant herein that a disputed question of title cannot be gone into in an
  application for grant of Letters of Administration.

E        Before us· Mr. Bhat, learned counse! appearing for the appellant
  herein raised the following contentions : (i) that the Trial Court had no
  jurisdiction to go into the question as regard the title of the property
  inasmuch as while disposing of an application under Section 276 of the
  Indian Succession Act, the Court is only concerned with genuineness or
F otherwise of the Will and in the event there exists a dispute with regard
  to title, a separate suit may be filed. It was pointed out that the impugned
  judgment wherein a. contrary finding had been arrived at has since been
  overruled by a Fulf Bench of the High Court ofKarnataka in Smt. Severine
  D'Souza and Anr. v. Felix Ambrose D'Souza, [11.R. 2003 Kar 194] (ii) that
G the expression 'family' used in Section 61 of the said Act must be given
  an extended meaning of so as to include the persons related to the testator
  by legitimate kinship or otherwise and in that view of the matter the
  appellant being the cousin's daughter of the testator would come within
  the purview thereof. Reliance in this behalf has been placed on Sangappa
    Kalyanapa Bangi (Dead) through L.Rs. v. Land Tribunal, Jamkhandi al'd
H   Ors ' (1998] 7 sec 294.
                 JA YAMMA v. MARIA BAI [SINHA, J.]                       179

      Ms. Arora, learned counsel appearing on behalf of the respondents A
on the other hand, would contend that the appellant was mere a neighbour
and has not been proved to be a member of the testator's family. Our
attention, in this behalf, has been drawn to the statement of the appellant
herein made by her in examination in chief before the Trial Court.

      The said Act was enacted for the purpose of enacting a uniform law
                                                                                B
relating to land reforms in the State ofKarnataka. The expressions 'family'
and 'joint family' have been defined in Sections 2(12) and 2(17) of the
said Act to mean:

         "2(12) "Family" means -                                                c
         (a)    in the case of an individual who has a spouse or spouses,
                such individual, the spouse or spouses and their minor sons
                and unmarried daughters, if any;

         (b)    in the case of an individual who has no spouse such D
                individual and his or her minor sons and unmarried daughters;

         ( c)   in the case of an individual who is a divorced person and
                who has not remarried, such individual and his minor sons
                and unmarried daughters, whether in his custody or not; and E

         ( d)   where an individual and his or her spouse are both dead,
                their minor sons and unrrwrried daughters;"

         "2(17) "Joint family" means in the case of person governed by
         Hindu Law, an undivided Hindu family, and in the case of other F
         persons, a group or unit the members of which are by custom joint
         in estate or residence."

      Various restrictions have been imposed as regard sub-division or sub-
letting of the land held by a tenant or assignment of any interest therein. G

     Sections 21(1), 61(1) and 61(3) of the said Act impose such restrictions
which read as under :

         "21. Sub-division, sub-letting and assignment prohibited.-{!) No
         sub-division or sub-letting of the land held by a tenant or H
    180                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A         assignment of any interest therein shall be valid :

          Provided that nothing in this sub-section shall affect the rights, if
          any, of a permanent tenant.

          Provided further that if the tenant dies. -
B
          (i)     if_ he is a member of joint family the surviving members of
                 the said family, and

          (ii)   it he is not a member of a joint family, his heirs shall be
c                entitled to partition and sub-divide the land leased subject to
                 the following conditions :-

                 (a)    each sharer shall hold his share as a separate tenant;

                 (b) the rent payable in respect of the land leased shall be
D                    apportioned among the shares as the case may be
                     according to the share allotted to them;

                 (c)    the area allotted to each sharer shall not be less than
                        a fragment;

E                ( d)   if such area is less than a fragment the sharers shall be
                        entitled to enjoy the income jointly, but the land shall
                        not be divided by metes and bounds;

                 (e)    if any question arises regarding the apportionment of
F                       the rent payable by the sharer it shall be decided by the
                        Tahsildar.

          Provided that if any question oflaw is involved the Tahsildar shall
          refer it to the court. On receipt of such reference the court, shall,
          after giving notice to the parties concerned, try the question as
G         expeditiously as possible and record finding thereon and send the
          same to the Tahsildar. The Tahsildar shall then give the decision
          in accordance with the said finding.

          "61. Restriction on transfer of land of which tenant has become
H         occupant. - (t) Notwithstanding anything contained in any law,
                  JAYAMMA v. MARIA BAI [SINHA, J.]                      181

        no land of which the occupancy has been granted to any person A
        under this Chapter shall within fifteen years from the date of the
        final order passed by the Tribunal under sub-section (4) of sub-
        section (5) or sub-section (5-A) of Section 48-A be transferred by
        sale, gift, exchange, mortgage lease or assignment; but the land
        may be partitioned among members of the holder's joint family. B

        (2) ...

         (3) Any transfer or partition of land in contravention of sub-
         section ( 1) shall be invalid and such land shall vest in the State
         Government free from all encumbrances, and shall be disposed in C
         accordance with the provisions of Section 77 ."

      On a bare perusal of the aforementioned provisions it would appear
that whereas Section 21 refers to sub-division, sub-letting of the land held
by a tenant or assignment of any interest therein, Section 61 imposes a
stricter restriction on transfer ofland of which tenant has become occupant. D

     The said provisions are further required to be read with the expressions
'family' and 'joint family' as contained in Section 2(12) and 2(17) of the
Act.

      It is not in dispute that a tenant who has become an occupant cannot
                                                                                E
except on the grounds stated in the said Act, be evicted therefrom. Section
61 contains a non obstante clause. It is also not in dispute that although
tenancy would be a heritable interest, the right of occupancy can be granted
to an heir only if he is qualified therefor, that is there must be a cultivable
land on the appointed day. However, all heirs cannot become occupant. F
Even a married daughter of the deceased tenant would not be granted such
a right. The sine qua non for obtaining the status of occupancy of tenancy
is that the person concerned must be a tenant on the appointed day.

     Section 213 of the Indian Succession Act provides that no right as G
executor or legatee can be established in any Court of Justice, unless a
Court of Competent jurisdiction inter alia, grants a letters ofadministration
with a copy of the Will annexed.

     The Court empowered to grant a letter of administration although
ordinarily may not go into the question of title in respect of property sought H
    182                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A to be bequeathed by the testator the situation would be different where the
    authority of the testator to execute a Will in relation to the subject matter
    thereof is in question. When a statutory embargo exists on execution of
    a Will, the court shall not refuse to determine the question as regard validity
    thereof, as in terms of the provisions of a statute, the same would be void
B ab initio.
          We would discuss the construction of the provision of Section 61 of
    the said Act, a little later, but we have no hesitation in holding that in the
    event if it be held that the testator could not have executed the Will in
    favour of a person who could not e declared to be a tenant having
c   occupancy right such a Will would be void ab initio and, therefore, non
    est in the eye of law. The court in such an event would not be determining
    a disputed question of title but would be considering the effect of the statute
    vis-a-vis the Will in question.

D        The submission of Mr. Bhat for the forgoing reason cannot be
    accepted.

          As we have noticed hereihbefore that the statutory embargo on
    transfer of land is stricter in a case where the tenant has become occupant
E   than a land held by a tenant simpliciter. We have also noticed that the
    embargo on transfer is not only by way of sale, gift, exchange, mortgage,
    lease but also by assignment. What is permitted under the law is partition
    of the land amongst the members of the family. Section 61 of the Act is
    to be read in its entirety.

F         Sub-section (3) of Section 61 lays down that any transfer of land in
    contravention of sub-section (I) shall be invalid whereupon the same shall
    vest in the State Government free from all encumbrances. The legislative
    intent that the land should not be allowed to go to the bands of a stranger
    to the family is, therefore, manifest. Whereas in terms of Section 21,
G   strangers to the family of the tenant to come upon the land is not allowed,
    the tenor of Section 61 is that except partition amongst the co-sharers, no
    transfer of the property, in any manner, is permissible.

         When an assignment or transfer is made in contravention of statutory
H   provisions, the consequence whereof would be that same is invalid and
                 JAYAMMA v. MARIA BAI [SINHA, J.]                          183

thus, being opposed to public policy the same shall attract the provisions A
of Section 23 of the Indian Contract Act.

     It is not disputed that in view the purport and object the Legislature
sought to achieve by enacting the said provision the expression 'assignment'
would include a Will.
                                                                                   B
      In this case, there is also no dispute that grant ofagricultural land with
occupancy right in terms of the provisions of the said Act was made on
14.10.1981. The will in question having been executed on 20.2.1984; the
transfer has been made within a period of fifteen years from the date of
grant which is prohibited in law.                                                  c
     In Sangappa Ka/yanappa Bangi (supra), whereupon Mr. Bhat placed
strong reliance, a Division Bench of this Court held :

         " ... We have to read Section 21 with Section 24 to understand the
         full pu_rport of the provisions. Section 24 is enacted only for the D
         purpose of making it clear that the tenancy continues
         notwithstanding the death of the tenant and such tenancy is held
         by the heir of such tenant on the same terms and conditions on
         which he had held prior to his death. The heirs who can take the
         property are those who are referable to in Section 21. If he is a E
         member of the joint family, then the surviving members of the
         joint family anc! if he is not such a member of a joint family, his
         heirs would be entitled to partition. Again, as to who his heirs are
         will have to be determined not with reference to the Act, but with
         reference to the personal law on the matter. The assignment of any F
         interest in the tenanted land will not be valid. A devise or a
         bequest under a Will cannot be stated to fall outside the scope of
         the said provisions inasmuch as such assignment disposes of or
         deals with the lease. When there is a disposition of rights under
         a Will, though it operates posthumously is nevertheless a
         recognition of the right of the legatee thereunder as to his rights G
         of the tenanted land. In that event there is an assignment of the
         tenanted land but that right will come into effect after the death
         of the tes_tator. Therefore, though it can be said in general terms
         that the devise simpliciter will not amount to an assignment, in
         a special case of this nature, interpretation will have to be H
    184                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A            otherwise."

         Having held so, the Bench however, having regard to the phraseology
    used in Section 21 of the said Act proceeded to observe that the object of
    the law is not to allow strangers to the family of the tenant to come upon
B the land stating :

             " ... We must take into consideration that when it is possible for the
             tenant to pass the property to those w~o may not necessarily be
             the heirs under the ordinary law and who become heirs only by

c            reason of a bequest under a Will in which event he would be a
             stranger to the family and imported on the land thus to the
             detriment of the landlord. In that event, it must be taken that a
             devise under a Will will also amount to a assignment and,
             therefore, be not valid for the purpose of Section 21 of the Act.
             If Section 24 is read along with Section 21 it would only mean
D            that the land can pass by succession to the heirs of a deceased
             tenant but subject to the conditions prescribed in Section 21 of the
             Act. Therefore, we are of the view that the broad statement made
             by the High Court in the two decisions in Shivanna, (1977) 1 Kant·
             LJ 146 (Short Notes Item 160) and Dhareppa v. State of
E            Karnataka, (1979) 1 Kant LJ 18 would not promote the object and
             purpose of the law. Therefore, the better view appears to us is as
             stated by the High Court in Timmakka Kom Venkanna Naik v.
             Land Tribunal, (1987) 2 Kant (J 337).

F         It was further observed :

             " .. .It is no doubt true that the meaning attributed to an heir could
             j>e as suggested by the learned counsel for the appellants so as to
             include the descendant and other persons related by legitimate
G            kinship or otherwise who may be covered by a Will, but the true
             question to be decided in this case is if a devise of that nature is
             hit by Section 21 of the Act or not. The object and purpose of
             Section 21 being to continue the rights of tenancy only to those
             known under law as heirs and therefore, assignment to strangers
H            is barred ..."
                                             ,.



                  JAYAMMA v. MARIA BAI [SINHA, J.]                       185
      Apart from the fact that the interpretation was rendered having regard A
to the language used in Section 21 of the said Act which would not ipso
facto apply to Section 61 thereof, as thereby a stricter statutory embargo
has been imposed on transfer or assignment, the contention of Mr. Bhat
to the effect that the appellant was a relation to the testator ,also does not
appear to be correct. In her examination in chief itself, the appellant stated: B

           "I am tile Plaintiff PW 3 Richard D'Souza is my son-in-law. He
           was residing at Kinnigoli and after marriage he is residing at
           Katee!. He was living in a house within a distance about Y. meter
           from the house of the deceased Anthony Rebello. I was living in
           the house of my son-in-law. Anthony Rebello was living alone in C
           his house. He is no more. I knew him for a period of about 1 year
           and 9 months prior to his death. I came to know him as I was living
           in the house of my son-in-law. Anthony Rebello came to my son-
           in-law's house and told him that he has no one to look after him
           and he is aged 82 years. During this 1 year and 9 months his wife D
           or children had not come to see him. Anthony Rebello requested
           my son-in-law for assistance and therefore, I, my son-in-law
           looking after him."

     The appellant, therefore, in view of the aforementioned statement was     E
not having any legitimate kinship with the testator of the Will.

      On a fair construction of Section 61 of the Act, in our opinion a
transfer of agricultural land with occupancy right is permissible only in
favour of one of the heirs who would be entitled to claim partition of land
and not others having regard to the definition of 'family' as contained in     F
Section 2(12) and 'joint family' as contained in Section 2(17) of the said
Act

        We, therefore, find no force also in the second submission of Mr.
Bhat.
                                                                               G
      For the reasons aforementioned. We do not find any merit in this
·appeal, which is dismissed accordingly. No costs.

S.K.S.                                                   Appeal dismissed.